February 16, 2017

Trump’s Executive Order: What’s Legal?

by Robert Cohen, Porter Wright Morris & Arthur LLP

President Trump issued three Executive Orders during the first week of his administration to fulfill campaign promises, in which he promised to build a wall along the southern border of Mexico and to impose a ban on the admission of Muslims until the new Administration could impose “extreme vetting” of all non-citizens admitted to the United States. A third Executive Order addressed the withdrawal of all federal funds from cities the Administration identifies as “sanctuary cities.”

The most impactful order was the third one signed and immediately implemented on the late afternoon of January 27. Entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” this Order immediately suspended the admission of all refugees for 120 days, Syrian refugees indefinitely, and prohibited the admission of all citizens from seven designated countries (Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen) with both immigrant and nonimmigrant visas for 60 days. While the Order provided individual exemptions in the national interest on a case by case basis, the standards and the procedures to apply for this exemption were not identified in the Order. The implementation of this Order has been chaotic, instilling fear and uncertainty among travelers, employers, families, and hundreds of demonstrators at cities and airports throughout the country.

A separate provision of the Executive Order terminates the interview waiver provisions of the State Department practice regarding applications for nonimmigrant (temporary) visas. Current policy permits the Consular offices to re-validate a nonimmigrant visa in the same category when the previous visa expired within the year prior to the new application. The elimination of this ability to waive the interview is expected to increase waiting times for visa appointments at busy posts. However, consular posts in India have stated that they are still processing visas pursuant to the visa waiver policy. We are not certain how long this may last, or when the policy may change to implement the Executive Order. Thus, individuals who need to apply for a visa abroad before returning should plan sufficient time for an interview should it be necessary. Citizens of the seven countries identified in the Executive Order are advised to avoid any international travel or visa applications until we have more clarity on the application of this Order.

Predictably, the Executive Order resulted in an immediate flood of lawsuits. In fact, the first restraining order was issued approximately four hours after the President signed the order.

The President cited Section 227(f) of the Immigration & Nationality Act, 8 U.S.C. §1182(f), as authority for the Order. This section gives the President the authority to bar the admission of certain persons or a class of persons he determines will be detrimental to the interests of the United States. As this article is being prepared, several courts across the country have issued limited Temporary Restraining Orders as applied to specific individuals. In Boston, the District Court issued an opinion finding in part that the issue was moot based upon the Administration’s subsequent statements that it did not apply to Permanent Residents returning to the U.S. after a temporary visit abroad. The Court also lifted the TRO until the issues could be addressed in a motion for a preliminary injunction, holding that the question of who could be admitted to the United States was a fundamental sovereign right to be determined by the President, and that challenges to his decisions were evaluated based on whether they were rationally related to a legitimate government purpose.

On the other side of the country, the states of Washington and Minnesota challenged the Executive Order based upon alleged harm to the economic, educational, cultural and health-related interests of the plaintiffs. The District Court, after standing by the states, issued a TRO restraining implementation of the Executive Order on a nationwide basis. The Ninth Circuit declined to lift this TRO in an emergency order, but established an aggressive briefing schedule, leading observers to expect a speedy review from the Circuit Court. The issues are expected to go to the Supreme Court irrespective of the Ninth Circuit Court’s decision.

Now, the Courts must assess whether the Executive Order exceeded the President’s authority as provided by section 212(f) of the Immigration Act. While the posture of the cases in Boston and Seattle are different, there are some common issues. Standing is the preliminary issue only in the action filed by Washington and Minnesota, but this has not been an issue in cases filed by individuals who have been subject to specific actions as a result of the Executive Order. Some of the common issues to be decided by the courts include:

  • Section 212(f) has never been used to define a class of individuals as broad as President Trump’s Executive Order. The Order identifies every citizen of seven countries, as well as thousands of individuals already approved for refugee status by the United States Government. While the Executive branch is given wide latitude, does this broad classification violate the Equal Protection provisions of the Fourteenth Amendment? Will equal protection be evaluated based upon a rational basis test (as noted above), or the stricter standard of strict scrutiny, which would ask whether the Executive Order is narrowly tailored to achieve a compelling governmental interest?
  • Inherent in this question of the standard to be applied is the question of whether the Administration is motivated by an improper animus. President Trump’s statements about the Muslim ban, and those made by his key advisors, have raised the question of whether the motive for this order is religious or national origin discrimination and not national security. The plaintiffs in Seattle submitted a statement issued by 10 former national security, foreign policy and intelligence officials who have asserted that there is no evidence to support the ban as drafted in the Executive Order, and that it actually harms the security of the United States. The Court in Boston declined to consider this issue, and held that the improper animus, which requires strict scrutiny when proven, applies only to the actions of states and not the President.
  • Does the Executive Order create a preference for a particular religion by permitting Christian refugees to enter the country, but not others? Again, the President’s statements promising a ban for all Muslims becomes a focus of whether there is a governmental preference of one religion over another. The Courts will determine if this preference violates the Establishment Clause of the First Amendment.
  • Does the Order deprive nonimmigrant residents of the United States due process by revoking visas and therefore the right to travel, visit family and academic conferences without due process? The Court in Boston reviewed case law and determined that there was no due process interest in a visa, and the Plaintiffs in the Ninth Circuit have cited Supreme Court cases that hold due process applies irrespective of immigration status, like Mathews v. Diaz, 426 U.S. 67 (1976). This issue may turn on the posture of the different cases. While the plaintiffs in Boston were foreign students arriving at the airport with a foreign student visa, the plaintiffs in Seattle are alleging that the Executive Order applies to individuals already in the United States and who are now prohibited the rights to travel without due process.
It is expected that over the next few weeks and months, several of the other cases will move forward and additional decisions will be issued. Courts across the country are going to address the issues raised by the Executive Order in a variety of different situations and contexts, and it is almost certain that the final decisions will be made by the Supreme Court.

To read more from Robert on this subject, check out his blog.


Robert Cohen